S Nonimmigrant Adjustment Under INA §245(j)

How does an S nonimmigrant obtain permanent residence?

See the Special Adjustment Categories hub.

What are S-5, S-6 and S-7 classifications?

S classification is a highly specialized law-enforcement immigration category. Adjustment is therefore tied to the government's assessment of whether the witness or informant fulfilled the conditions that justified S admission.

S nonimmigrants are barred from ordinary INA §245(a) adjustment

INA §245(c)(5) specifically identifies a nonimmigrant admitted in S classification as barred from ordinary adjustment under subsection §245(a).

Congress created INA §245(j) as the special permanent-residence mechanism for qualifying S nonimmigrants.

S-5 adjustment: criminal witnesses and informants

INA §245(j)(1) authorizes adjustment where, in the government's opinion:

• The S-5 nonimmigrant supplied the information contemplated by the S statute; and
• The information substantially contributed to the success of an authorized criminal investigation or the prosecution of the relevant individual.

The statute then permits adjustment of the qualifying principal and specified family members admitted under the S provision if the applicant is not barred by INA §212(a)(3)(E).

S-6 adjustment: terrorism information

INA §245(j)(2) provides a separate standard for S-6 nonimmigrants.

The statute requires, in the Attorney General's sole discretion, that:

• The S-6 nonimmigrant supplied the required terrorism-related information;
• The information substantially contributed to prevention or frustration of an act of terrorism against a U.S. person or property, or substantially contributed to an authorized investigation or prosecution involving such an act; and
• The nonimmigrant received the reward specified by the statute under 22 U.S.C. §2708(a).

The applicant also must not be described in INA §212(a)(3)(E).

The original law enforcement agency must request adjustment

Current USCIS Form I-854 instructions provide that the law enforcement agency that originally requested S classification must submit the request allowing the S nonimmigrant to seek lawful permanent residence.

The sponsoring agency must certify that:

• The applicant fulfilled the terms and conditions of S admission and classification;
• The required witness or informant obligations were satisfied;
• The agency recommends adjustment; and
• The supporting law-enforcement record justifies the recommendation.

The current adjustment request uses Form I-854B

Current USCIS materials use Form I-854B, Inter-Agency Alien Witness and Informant Adjustment of Status, for the law-enforcement request associated with S adjustment.

The regulation predates the modern form structure and often refers generally to Form I-854.

The process should therefore follow:

• The current USCIS Form I-854B;
• The current form instructions;
• INA §245(j); and
• 8 C.F.R. §245.11.

The S nonimmigrant should not file Form I-854B as though it were an ordinary self-petition.

Department of Justice certification comes before USCIS adjustment authorization

Under 8 C.F.R. §245.11, the completed law-enforcement request is routed through the Assistant Attorney General, Criminal Division, Department of Justice.

The sequence generally is:

1. The sponsoring LEA prepares the S adjustment request.
2. The LEA certifies fulfillment of the S terms and conditions.
3. The request is submitted through the Department of Justice Criminal Division process.
4. The required DOJ certification is completed.
5. The adjustment request is forwarded for the immigration decision.
6. After the request is approved, the S nonimmigrant may file Form I-485 with the approved request.

No appeal from denial of the law-enforcement adjustment request

8 C.F.R. §245.11 establishes a special internal government review procedure when the request to allow S adjustment is denied.

The regulation provides:

• Notice to the Department of Justice Criminal Division and the relevant LEA;
• An opportunity for the Assistant Attorney General to concur or object;
• Referral to the Deputy Attorney General if the required objection is made; and
• No right of appeal by the S nonimmigrant or the LEA from the final denial.

This is fundamentally different from many ordinary benefit applications.

After authorization, the S nonimmigrant files Form I-485

Once the special request is approved, the S nonimmigrant may proceed with adjustment.

The Form I-485 filing generally includes:

• Form I-485;
• The approved Form I-854B adjustment request;
• Identity documentation;
• Passport evidence;
• Travel history;
• Evidence required by current Form I-485 instructions;
• Evidence supporting admissibility or an existing waiver;
• Relationship evidence for S-7 family members; and
• Other documentation requested under the specialized S regulations.

See Form I-485 Process.

The applicant must generally be admissible

8 C.F.R. §245.11 requires the S adjustment applicant to be admissible as an immigrant unless the applicable ground has been waived.

Potential issues can involve:

• Criminal inadmissibility;
• Controlled substance grounds;
• Fraud or misrepresentation;
• Health-related grounds;
• Prior removal;
• Unlawful presence;
• Security grounds;
• Alien smuggling;
• Immigration-document issues; and
• Other INA §212 grounds.

S cases require special attention because inadmissibility may already have been identified and waived before the original S admission.

Previously disclosed and specifically waived conduct cannot be reused to deny adjustment

8 C.F.R. §245.11(c) protects certain conduct or conditions that were addressed before S admission.

An S adjustment applicant may not be denied adjustment based on conduct or a condition that:

• Was disclosed to the government before admission; and
• Was specifically waived under the applicable INA §212(d)(1) or §212(d)(3) waiver authority.

New misconduct is different

The protection for previously waived conduct does not mean that later misconduct is automatically forgiven.

Review separately any event occurring after S admission, including:

• New arrests;
• New convictions;
• New controlled-substance conduct;
• New immigration fraud;
• Violation of S-status conditions;
• Failure to fulfill law-enforcement obligations; or
• Other newly arising inadmissibility.

A new waiver may be required if the law permits one.

INA §212(a)(3)(E) remains a statutory bar

INA §245(j) expressly conditions S adjustment on the applicant not being described in INA §212(a)(3)(E).

That provision addresses participation in:

• Nazi persecution;
• Genocide;
• Torture; and
• Extrajudicial killing.

The same restriction applies to qualified S family members under the implementing regulation.

Which family members can adjust as S derivatives?

INA §245(j) and 8 C.F.R. §245.11 permit adjustment of specified qualifying family members who were themselves admitted in derivative S classification.

Qualified family members can include:

• Spouse;
• Married son or daughter;
• Unmarried son or daughter; and
• Parent.

The qualifying family member generally must have been admitted in S classification to accompany or follow to join the principal S-5 or S-6 witness or informant pursuant to the LEA request.

The qualifying relationship generally must continue

For an S-7 family member using the specialized adjustment procedure, 8 C.F.R. §245.11 generally requires the qualifying relationship to continue to exist.

The principal must also:

• Have adjusted;
• Have a pending S adjustment application; or
• Be concurrently filing the principal S adjustment application.

The regulation contains a special exception where the principal witness or informant has died and the Attorney General determines that the principal was in compliance with the terms of S classification.

Some later-acquired spouses and children can use a different EB-4 derivative route

The S regulation recognizes a separate path for certain family members who were not admitted in derivative S status.

A spouse or unmarried child under 21 whose qualifying relationship was established before approval of the principal S nonimmigrant's adjustment may potentially receive:

• The principal's priority date;
• The principal's employment-based fourth preference category; and
• Immigrant visa or adjustment eligibility when the priority date becomes current.

Such a family member:

• Does not adjust through the specialized S-nonimmigrant procedure;
• Does not need Form I-854B;
• Does not need LEA certification for that derivative route; and
• Must independently satisfy ordinary immigrant visa or adjustment requirements unless waived.

A child using the separate EB-4 route can age out

The regulation provides that a child using the separate non-S derivative path loses eligibility if the child:

• Marries before immigrant visa admission or adjustment; or
• Turns 21 before immigrant visa admission or adjustment.

The interaction of this legacy regulatory language with any potentially applicable statutory age-protection rule should be analyzed before assuming eligibility is either preserved or lost.

The S adjustment priority date

8 C.F.R. §245.11(e) provides that the S nonimmigrant's priority date is the date the Form I-485 adjustment application is properly filed.

This differs from ordinary family or employment petitions where a priority date often arises from an earlier petition or labor certification.

Form I-485 may be filed even if an immigrant visa number is not yet available

The S regulation contains an unusual exception to the ordinary visa-availability filing rule.

8 C.F.R. §245.11(f) provides that the S adjustment application may be filed regardless of immediate immigrant visa availability.

However:

• USCIS cannot approve adjustment until an immigrant visa number becomes available;
• The visa number is allocated through the worldwide employment-based allocation; and
• The statutory adjustment reduces the available EB-4 number for the fiscal year.

See Visa Availability for Adjustment of Status.

S adjustment uses the employment-based fourth preference allocation

INA §245(j)(3) directs that approval of S adjustment reduces the number of visas available under the worldwide employment-based allocation and the fourth employment-based preference.

Accordingly, S adjustment has a visa-number component even though the specialized regulation allows filing before the number is available.

Travel history must be documented

8 C.F.R. §245.11 requires detailed evidence concerning the applicant's arrivals and departures in S classification.

The adjustment package should generally include:

• Copy of the most recent passport or explanation if unavailable;
• Dates of arrivals;
• Dates of departures;
• Reason for each departure;
• Admission records;
• Current S-status documentation; and
• Any travel authorization relevant to the applicant's history.

Travel may also affect maintenance of S status or other adjustment requirements.

The applicant must establish eligibility under the rest of INA §245 unless waived

After the special S adjustment request is authorized, the regulation still requires eligibility under the other applicable provisions of INA §245 unless the particular basis for ineligibility has been waived.

This requires a case-specific review of:

• Admission and status history;
• Any applicable §245 bars;
• Inadmissibility;
• Prior waivers;
• Visa availability for approval; and
• Other statutory requirements.

The S classification should not be treated as automatically overriding every other adjustment requirement.

Employment authorization and travel while the S I-485 is pending

The S regulation permits an applicant with a pending Form I-485 to request employment authorization and permission to travel under the generally applicable procedures.

Before travel, the applicant should analyze:

• Current S status;
• Advance parole or other travel authorization;
• Any prior removal history;
• Inadmissibility consequences;
• The terms of the S agreement; and
• Law-enforcement concerns associated with the applicant's role.

Denial of the S Form I-485 follows a special review process

8 C.F.R. §245.11 contains an unusual process when USCIS intends to deny an S adjustment application.

The regulation provides for notification to:

• The Department of Justice Criminal Division; and
• The relevant law enforcement agency.

The Assistant Attorney General can concur in or object to the decision, and an objection can be referred to the Deputy Attorney General for final resolution.

The denied S adjustment cannot simply be renewed in removal proceedings

8 C.F.R. §245.11(i) provides that denial of the S adjustment application may not be renewed in later removal proceedings.

This makes the initial specialized filing particularly important.

Before Form I-485 submission, the record should be complete concerning:

• LEA certification;
• DOJ approval process;
• Compliance with S terms;
• Admissibility;
• Prior waivers;
• Family eligibility;
• Travel history;
• Visa-number issues; and
• All other applicable §245 requirements.

Example: S-5 informant fulfills the agreement

Example: old inadmissibility was specifically waived

Example: spouse never held S-7 status

S adjustment checklist

• Confirm S-5, S-6, or qualifying S-7 classification.
• Identify the original sponsoring LEA.
• Confirm fulfillment of the terms of S admission and classification.
• For S-5, document substantial contribution to the qualifying criminal investigation or prosecution.
• For S-6, document the specialized terrorism-information requirements.
• Have the LEA prepare the current Form I-854B request.
• Complete the required Department of Justice certification process.
• Obtain approval authorizing the S nonimmigrant to seek adjustment.
• File Form I-485 with the approved interagency request.
• Review admissibility.
• Preserve all prior INA §212(d) waiver documentation.
• Identify any new inadmissibility arising after S admission.
• Confirm INA §212(a)(3)(E) does not apply.
• Document all travel in S status.
• Review qualifying S-7 family members separately.
• Distinguish S-7 adjustment from the separate EB-4 spouse/child derivative route.
• Track visa availability for final approval.

Common S adjustment mistakes

Primary authorities

Related INA245.com guides

Frequently asked questions